Defendant moves to dismiss the claim pursuant to CPLR 3211(a) (2) and (8) on
the ground that it was not served with a copy of the claim as required by Court
of Claims Act § 10 (3) and § 11 (a). On March 29, 2004 the claimant
served a notice of intention to file a claim upon the Attorney General by
certified mail, return receipt requested (Exhibit C). The notice of intention
alleged that the claimant was assaulted by a correction officer at Great Meadow
Correctional Facility on February 28, 2004. A claim relating to the same facts
set forth in the notice of intention was thereafter filed with the Court on
December 15, 2005.

Defendant's motion to dismiss the claim is supported by the affidavit of Janet
A. Barringer, Senior Clerk in the Albany Office of the Attorney General, in
which Ms. Barringer avers that she has searched the electronic and paper files
maintained by the Attorney General's office and found no record that this claim
was served upon the Attorney General.

Court of Claims Act § 11 (a)(i) provides that a claim shall be filed with
the Clerk of the Court and served upon the Attorney General either personally or
by certified mail, return receipt requested. The Court of Appeals has noted in
interpreting this provision that “statutory requirements conditioning suit
must be strictly construed” (Dreger v New York State Thruway Auth.,
81 NY2d 721, 724 [1992]). The failure to comply with this requirement, if not
waived pursuant to Court of Claims Act §11 ( c), is a defect which deprives
the Court of jurisdiction and requires dismissal of the claim (Rodriguez v
State of New York, 307 AD2d 657 [2003]).

Defendant has established that no claim was served upon the Attorney General
and the time to do so has now expired (see Court of Claims Act § 10
[3-b]). As a result, the claim is dismissed.

December 8, 2008Saratoga
Springs, New York

HON. FRANCIS T. COLLINSJudge of the Court of
Claims

The Court considered the following papers:

Notice of motion dated August 27, 2008;

Affirmation of Paul F. Cagino dated August 27, 2008;

Affidavit of Janet A. Barringer sworn to August 26, 2008 with exhibits.